LGBTQ Discrimination on College Campuses

Coming Out Week is here and for thousands of people across the country, this is a week of celebration and visibility of the LGBTQ community.

But for some students on college campuses, coming out can be dangerous—resulting in discrimination, harassment, or even expulsion.

Unfortunately, laws protecting LGBTQ students from discrimination are under attack. According a new brief released today by MAP and the National Center for Transgender Equality, Title IX, Religious Exemptions and Campus Climate: LGBT Protections in Higher Education, the expansion of the ability of colleges and universities to claim a religious exemption to federal nondiscrimination laws can have a profoundly negative impact on LGBTQ students. These risks include threats of expulsion, increased disciplinary action simply for being LGBT, being denied participation in extracurricular activities, or forced into conversion therapy or counseling.

What is Title IX?

Title IX of the Education Amendments of 1972 is a federal law that prohibits discrimination on the basis of sex in federally-funded educational institutions, including colleges and universities. For years, Title IX protections have been a critical protection for LGBTQ students—and not just for K-12 students.

In 2014, the Obama administration issued official guidance clarifying that transgender students are protected from discrimination based on Title IX’s prohibition on sex discrimination. However, in 2017, the Trump administration rescinded that guidance. In February of this year, the U.S. Department of Education’s Office of Civil Rights announced that they will no longer be investigating complaints of discrimination filed by transgender students.

What’s worse, according a recent leaked draft of new proposed rules from the Department of Education, the Department is exploring expanding the ability of schools to claim religious exemptions, and allowing schools to claim such an exemption without even notifying the Department of Education. This means schools basically have a de facto exemption from Title IX.

Importantly, federal Title IX continues to prohibit discrimination based on sex, and many courts have held explicitly includes discrimination based on gender identity and/or sexual orientation.

What does this mean for LGBTQ students?

Many campuses provide a welcoming and supportive campus climate for LGBTQ students including nondiscrimination policies that include sexual orientation and gender identity; provide facilities access and equal housing for LGBTQ students; establish preferred name policies; and support and prioritize the needs of LGBTQ student-led organizations, including those measured by The Campus Pride Index. However, there are an increasing number of campuses that are seeking religious exemptions to following even the basic nondiscrimination requirements of Title IX. Because of the reduced oversight from the federal government guided by actions from the Trump administration, it is likely more universities will request religious exemptions with regard to LGBTQ students, allowing them to discriminate against students on their campuses.

Is there any recourse?

Yes! As the brief points out, federal courts have determined that federal sex discrimination laws, including Title IX, prohibit discrimination on the basis of gender identity and/or sexual orientation.

Just like in K-12 schools, universities have a responsibility to ensure a safe campus environment for all students and to follow federal law. It is crucial to foster inclusion on campus so that LGBTQ students have the same chance as other students to pursue an education and be prepared to support themselves.

Click here to read Title IX, Religious Exemptions and Campus Climate: LGBT Protections in Higher Education.

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Third Circuit hears a case highlighting how transgender students are harassed and singled out in schools

Tomorrow, the 3rd Circuit Court of Appeals will hear an important case about whether transgender students can safely attend school.

The case, Doe v. Boyertown, was brought by a student under the pseudonym Joel Doe. Doe attends the Boyertown Area School District in Pennsylvania, which allows transgender students to use facilities that match their gender identity. Doe is arguing that his school should be required to ban transgender male students from using the same school facilities—like restrooms and locker rooms—as other male students.

Schools are well-equipped to manage the different needs of students in these settings—and they’ve shown they can provide additional privacy for students who want it, while also ensuring that transgender students can access facilities consistent with their gender identity. Excluding transgender students from school facilities that match their gender identity is humiliating, discriminatory, and adds to the bullying and mistreatment that far too many transgender students already face. If transgender students cannot safely access a restroom, they cannot safely attend school.

According to GLSEN’s 2015 National School Climate Survey, transgender students who experience exclusion and discrimination are more likely to miss school than other students. The survey also showed that 75% of transgender students felt unsafe at school, and 70% report avoiding bathrooms at school. MAP’s 2017 report, Separation and Stigma: Transgender Youth & School Facilities, further illustrates the significant hostility, discrimination, and bullying that transgender youth face in schools around the country. It also highlights the lack of explicit policy protections for transgender students in most states. (For more on the state of LGBT protections in schools around the country, see MAP’s Safe Schools Laws Equality Map.)

School policies should protect students from bullying and isolation; they shouldn’t promote it. And, a growing number of courts agree that Title IX’s ban on sex-based discrimination in education means that transgender students’ rights must also be protected. Specifically, transgender students must be allowed to use facilities that match their gender identity.

Transgender students, like other students—and like all of us—care about safety and privacy in places like restrooms and locker rooms. Every student also deserves a fair chance to succeed in school and prepare for their future—including students who are transgender.

Title IX Still Protects Transgender Students, Even if DeVos Won’t

Earlier this month, the Trump Administration targeted transgender students again. Secretary of Education Betsy DeVos announced that the Department of Education is no longer accepting or investigating complaints from transgender students who are denied access to the bathrooms and facilities that match their gender identity. Title IX of the federal Civil Rights Act protects all students from discrimination based on sex, and denying transgender students access to facilities because of their gender identity is discrimination based on sex.

This announcement came almost a year to the day after the Trump Administration’s decision to rescind Obama-era guidance that clarified that Title IX protections include protections for transgender students.

So, what is Title IX and who does it protect, exactly?

As shown in our updated infographic, Title IX is part of the federal Civil Rights Act, and it ensures that students must be afforded the same dignity, protection, and opportunity under the law regardless of their race or ethnicity, national origin, religion, or sex.

More recently, in 2016 under the Obama Administration, the Department of Justice explicitly stated that Title IX protections include protections for transgender students.

Yet, just days after assuming her role as President Trump’s Secretary of Education, Secretary DeVos rescinded that guidance, leaving students vulnerable to discrimination and harassment. This month’s announcement that the Department of Education won’t investigate claims filed by transgender students confirms yet again that President Trump and Secretary DeVos have endorsed the belief that transgender students are less deserving of protection than their peers.

This is particularly disturbing given the extensive bullying, violence, and discrimination faced by transgender students, as shown in MAP’s infographic. According to the 2015 National School Climate Survey, fully 75% of transgender students say they feel unsafe at school because of their gender expression, and 70% say they have avoided using school bathrooms as a result. By refusing to protect transgender students’ rights to use the bathroom – something we all have to do every day – Secretary DeVos and the Trump Administration are perpetuating the bullying, violence, and unsafe environment that ultimately deny transgender students their right to an education.

Despite Secretary DeVos’ announcement, schools around the country continue to have a legal obligation to protect transgender students’ rights, including the right to use bathrooms and facilities that match their gender identity. And the courts agree.

Our infographic shows that both the Sixth and Seventh Circuits have already ruled that Title IX’s protections include transgender students. Thanks to the hard work of our friends at the Transgender Law Center and the courageous efforts of a transgender student named Ash Whitaker, the Seventh Circuit’s unanimously found that transgender students are protected not only by Title IX, but by the U.S. Constitution itself.

More cases are also working their way through courts around the country, similarly defending the rights of transgender students under Title IX and the Constitution.

The Department of Education says its mission is “to promote student achievement and preparation for global competitiveness by fostering educational excellence and ensuring equal access.” Whether or not President Trump or Secretary DeVos choose to uphold this mission, the law still protects transgender students and their rights to equal access and education.

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